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Thursday, 27 September 2012

Proposals for standardised packaging of tobacco products, which not so many years ago were regarded as little more than a distant threat, have become reality in Australia and look likely to do so within the European Union. The IPKat has hosted pieces both critical and supportive of the principle (see eg here, hereand here), and expects to do so again in the near future as the debate becomes more sharply focused. In this context, here's a fresh piece by Christopher Morcom QC (Hogarth Chambers) which takes the latest European Commission health and environment proposals to task :

"The European Commission's threat to Intellectual Property Rights and innovation

Following soon after the closure of the UK Department of Health's consultation on 'Standardised Packaging' for tobacco products, the German newspaper Die Welt has drawn attention to plans of the EU Commission who are said to be "Ready to Strike Against Tobacco Industry" (here). It is reported that "Brussels wants strict regulation of pack sizes, sales, and ingredients of cigarettes - and is already thinking about the next tightening". Indeed, Commissioner Dalli (Directorate General Health and Environment: DG SANCO) seems to have produced a revised draft Directive on tobacco products containing extreme measures, which represent a real threat to intellectual property rights (IPRs).

Since the European Parliament vote against ACTA last July, it seems that IPRs, most unfortunately, continue to be inadequately regarded. Any proposed form of standardization of packaging is an assault on IPRs and would undermine the Commission’s professed willingness to maintain the EU as a competitive place in a favourable environment to creativity and innovation.

Commissioner Barnier, in charge of the promotion and defence of IPRs, is playing a key role for companies in motivating them to create and innovate. The draft proposal of DG SANCO undermines his wish to link investment in innovation with effective protection of IPRs. Other sectors whose products are considered as “dangerous for health” are already coming under consideration both in the UK and in Europe. Companies in such sectors and the IP community in general may justly expect Commissioner Barnier to address the legality of the DG SANCO proposal from the point of view of international conventions (TRIPS, Paris Convention and European Convention on Human Rights), as well as the general impact on IPRs lawfully acquired in respect of legal products.

It is therefore to be hoped that Commissioner Barnier will be considering all these aspects as a matter of urgency. If the proposal were to be adopted by the Commission, it would send a negative message to the IP, business and investment communities: "Intellectual property rights are not welcome any more in the EU".

Finally, regarding the UK Consultation, it is to be hoped that the UK Minister for Intellectual Property has been asked to consider the impact of the proposals for "Standardised Packaging" from the legal point of view. We now have a new Minister, Lord Marland, who has the opportunity and the responsibility to consider the proposals in the light of IP laws and the UK's obligations under the treaties referred to above. It is important that he should take advantage of that opportunity".

This Kat, as he has said before, is a militant non-smoker but a believer in the need for the integrity of intellectual property rights, and that includes trade marks for unpopular and indeed dangerous products too: he also feels that, if governments want to do something about smoking, there are more direct and immediate ways to tackle it.

Health warning but no need for plain packaging

Is Christopher Morcom's case overstated? Many readers will feel that the rejection of ACTA by the European Parliament is not part of this debate: it was not a rejection of the need to protect IP but a swift response to a groundswell of popular opposition on the streets of Warsaw and on the internet. No-one accused the United States of rejecting the need to protect IP after the sudden and dramatic abandonment of PIPA and SOPA and the European Parliament is probably no different. Likewise, many may feel that an attack on the right to deploy tobacco brands and livery in the traditional manner does not send out a message that the EU is discouraging innovation and investment, but rather that the EU is seeking to channel innovation and investment from markets which it wishes to shrink and towards markets where it wishes to see growth. Be that as it may, Christopher is right to suggest that different organs within the Commission should not be seen to be pulling in different directions -- and it would be good to know exactly where Commissioner Barnier and his team stand in relation to the position of DG SANCO.

Of more interest to this Kat is the possible extension of plain packaging to other classes of products. At the recent MARQUES meeting in Athens, Massimo Sterpi's Workshop on plain packaging (noted in brief on Class 46 here) looked at the counter-intuitive possibility that plain packing would increase smoking, not decrease it and also discussed the prospects of plain packaging for alcoholic products -- which like tobacco products can cause disease and death -- and confectionery and snack foods the over-consumption of which can lead to obesity and the increased risks of diabetes and heart disease.

3 comments:

Anonymous
said...

This Kat, as he has said before, is a militant non-smoker but a believer in the need for the integrity of intellectual property rights, and that includes trade marks for unpopular and indeed dangerous products too

Nevertheless, strangely enough, Bayer long ago abandoned its "Heroin" trademark for diacetylmorphine (or rather, allowed it to become generic...).

It worries me that the authorities are thinking about tinkering with the use of trade marks because the mandated warnings are not proving effective enough in their eyes. Where would it stop? If I ever manage to treat myself to a bottle of Chateau Latour, I do not want it to come with a plain label on it!

But given the value of all of those French drinks brands, I imagine we can at least rely on Barnier to draw the line there!

The core of the "plain packaging" measures can be considered as legitimate regardless of our preferences (economic, political, smoker/non-smoker...). I think it could stand a proportionality test (even at Court of Justice) if the legislator use a proper legal technique and language. And as for potential breach of TM ownership everyone was waiting for the reasons of Australian High Court judgement from 15 August 2012, which has been published on Friday this week; I strongly recommend read it: http://www.austlii.edu.au/au/cases/cth/HCA/2012/43.html

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